652 N.Y.S.2d 877 | N.Y. App. Div. | 1997
Appeal from an order of the Supreme Court (Rumsey J.), entered February 20, 1996 in Tompkins County, which, inter alia, partially granted defendants’ cross motions for summary judgment dismissing the complaint.
Between late 1985 and early 1986, plaintiff Grace A. Hedlund and her daughter, plaintiff Lynnette M. Brown (hereinafter collectively referred to as plaintiffs), who lived next door, began to experience neuromuscular difficulties. In November 1987, after being treated by James Miller, an allergist, both were diagnosed with multiple chemical sensitivities. Notwith
Hedlund contacted DEC but no tests were performed. Hence, in October 1989, Hedlund retained Carter to perform the necessary tests, the results of which led to Carter’s opinion, in a letter dated March 30, 1990, that there was petroleum hydrocarbon contamination of the soil at the Floss site and that this was the possible source of the contamination of Hedlund’s well water.
A notice of claim was served on the County on June 7, 1990, followed by service of the summons and complaint on April 24, 1991. On May 8, 1991, the Flosses were served. The complaint contained 11 causes of action, including derivative claims, yet did not recite any statutory violations or statutory causes of action. After joinder of issue, the County made a demand for a verified bill of particulars, which plaintiffs served on the County on November 20, 1991. By notice of motion dated October 26, 1995, plaintiff sought leave to amend their bill of particulars to claim that all of the statutes alleged in their notice of claim had been violated by the County and the Flosses. Both the County and the Flosses cross-moved for summary judgment, contending that the actions were time barred. Supreme Court denied plaintiffs’ request to amend and found that all of plaintiffs’ causes of action, except the claim for injunctive relief, were time barred. Plaintiffs appeal.
We further agree that the dismissed causes of action were untimely. It being undisputed that the applicable Statute of Limitations is CPLR 214-c based upon allegations of the latent effects of exposure to toxic substances, with the claims deemed to have accrued "on the date of discovery of the injury” (CPLR 214-c [3]), we have found that such date will not be dependent upon the discovery of the cause of the injury (see, Matter of Seekings v Jamestown Pub. School Sys., 224 AD2d 942, 943; Sweeney v General Print., 210 AD2d 865, lv denied 85 NY2d 808). A diagnosis that one is suffering from a disease, "even though unaware of its cause” (Sweeney v General Print., supra, at 866), is sufficient to start the running of the limitations period.
Here, plaintiffs were diagnosed in November 1987, thus requiring them to serve their notice of claim within 90 days (see, General Municipal Law § 50-e [1] [a]; Distel v County of Ulster, 107 AD2d 994, 996). Pursuant to General Municipal Law 50-i (1) (c), the action had to be commenced within one year and 90 days from the date of the discovery of the injury. With the notice of claim served on the County on June 7, 1990 and the summons and complaint served on April 24, 1991, pursuant to the aforementioned sections, plaintiffs’ action against the County as to all but the claim for injunctive relief was time barred.
We do not find such period extended by CPLR 214-c (4) since plaintiffs did not "allege and prove that technical, scientific or medical knowledge and information sufficient to ascertain the
Had we considered the application of such section, even based upon plaintiffs’ discovery of the cause of the injury on March 30,1990, the complaint would still fail. Since the County was not served until April 24, 1991, the action would be time barred pursuant to CPLR 214-c (4) (see, Moore v Smith Corona Corp., 175 AD2d 458, 460). Plaintiffs’ contention that they had one year and 90 days after the discovery of the cause of the injury within which to commence their action pursuant to CPLR 214-c (4) and General Municipal Law § 50-i (1) (c) is without merit since the claim still accrues on the date of the discovery of the injury (see, CPLR 214-c [3]; see also, Matter of Seekings v Jamestown Pub. School Sys., supra, at 898; Johnson v Ashland Oil, 195 AD2d 980, 981, lv denied 82 NY2d 660).
For all of these reasons, based on the injury date of November 1987 or the March 1990 causation date, the action against the Flosses must similarly fail (see, CPLR 214-c [2]).
Accordingly, Supreme Court’s determination that the instant action, other than the injunctive relief requested, is time barred was in all respects proper.
Mercure, J. P., White, Casey and Carpinello, JJ., concur. Ordered that the order is affirmed, without costs.
. The record also contains a report, dated April 9, 1988, prepared by Buck Laboratory for DEC, which indicates the presence of petrochemicals in the soil from the Floss site.
. Any contention that CPLR 214-c (4) revives this claim is rejected for the reasons detailed as applicable to the County.